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2019 Supreme(All) 1084
IN THE HIGH COURT OF JUDICATURE AT ALLAHABAD
Pritinker Diwaker, Umesh Kumar, JJ.
Rafal – Appellant
Versus
State of U.P. – Respondent
Criminal Appeal No. 2250 of 1988
Decided On : 13-03-2019
For the Appellant : Sri. Udai Bhan Singh.
For the Respondent: Sri. Amit Sinha.
.
Headnote:
Penal Code,1860 – Section 302 read with Section 34 – Murder – Appeal against conviction – Appeal directed against the impugned judgment and order by which, he has convicted the accused-appellants – Challenged – Held, Right of defence was available to the accused persons, keeping in mind the injuries sustained by them, it can safely be said that they have exceeded their rights of self defence – After a careful scrutiny of the entire evidence, facts and circumstances of the case in its entirety, it appears that without any premeditation, the accused-appellants have committed the offence – Offence committed by the accused-appellants was only, culpable homicide not amounting to murder – Under the circumstances of the present case, we are inclined to bring down the offence from first degree murder to culpable homicide not amounting to murder – Accused-appellants are guilty of offence under Section 304 Part-I of IPC, we hereby award a sentence of ten years rigorous imprisonment and a fine of Rs. 5,000/- each, in default thereof, to undergo simple imprisonment for one month. The judgment and order under challenge, is modified to the above extent – Appeal disposed of. (Para 30,31,32,33 and 35)
Facts of the case:
This appeal is directed against the impugned judgment and order dated 23.09.1988 passed by learned 4th Addl. Sessions Judge, Saharanpur in S.T. No. 371 of 1985 arising out of Crime No. 238 of 1982, by which, he has convicted the accused-appellants Rafal, Tilak Ram and Ompal for life imprisonment under Section 302 read with Section 34 of IPC and under Section 323 read with Section 34 IPC for one year rigorous imprisonment. Both the sentences were ordered to run concurrently.
Findings of the case:
Right of defence was available to the accused persons, keeping in mind the injuries sustained by them, it can safely be said that they have exceeded their rights of self defence – After a careful scrutiny of the entire evidence, facts and circumstances of the case in its entirety, it appears that without any premeditation, the accused-appellants have committed the offence – Offence committed by the accused-appellants was only, culpable homicide not amounting to murder – Under the circumstances of the present case, we are inclined to bring down the offence from first degree murder to culpable homicide not amounting to murder – Accused-appellants are guilty of offence under Section 304 Part-I of IPC, we hereby award a sentence of ten years rigorous imprisonment and a fine of Rs. 5,000/- each, in default thereof, to undergo simple imprisonment for one month. The judgment and order under challenge, is modified to the above extent.
Result: Appeal disposed of.
JUDGMENT :
Umesh Kumar, J.
1. This appeal is directed against the impugned judgment and order dated 23.09.1988 passed by learned 4th Addl. Sessions Judge, Saharanpur in S.T. No. 371 of 1985 arising out of Crime No. 238 of 1982, by which, he has convicted the accused-appellants Rafal, Tilak Ram and Ompal for life imprisonment under Section 302 read with Section 34 of IPC and under Section 323 read with Section 34 IPC for one year rigorous imprisonment. Both the sentences were ordered to run concurrently.
2. Briefly, the facts giving rise to this appeal are that the informant-Brahamanand gave a report on 06.07.1982 at about 03.15 a.m. in the morning at police station, Jwalapur, sub-district Roorkie, Saharanpur, alleging that they had an old enmity with Rafal and Tilak Ram. On 05.07.1982, brother-in-law of Rafal came to his village at about 8.00 p.m. in the night. His son Babu Ram was going to his house and when he reached in front of the house of accused-Rafal, Rafal armed with Pathal (daranti), accused Tilak Ram armed with Ballam and accused-Ompal armed with lathi surrounded Babu Ram and assaulted him. On the cry of Babu Ram, Budh Singh son of Mukunda, nephew of informant who resides with him, ran to rescue Babu Ram, accused-Rafal saying that “Lage haath isko bhi nipta lo” all three accused persons started beating him. On the alarm being raised by Babu Ram and Budh Singh, Jai Pal, Bhir Singh, Jai Mal, Suresh and Brahammanand challenging the accused persons in order to save Babu Ram, rushed towards the spot. Accused-Rafal, Tilak Ram and Ompal, after causing injuries to Babu Ram and Budh Singh fled towards south. After receiving injuries, Babu Ram-deceased fell down on the ground. The informant and his cousin Hari Singh took away injured Babu Ram and Budh Singh to PHC, Bahadarabad by tractor, where the injured persons were medically examined. Babu Ram being serious, was referred to GD hospital, Hardwar. The medical report along with Tahrir was filed by him, Ex.Ka-1. thereafter, chik FIR Ex.Ka-10 was registered as Crime No. 238 of 1982 under Sections 324, 323 of IPC at Police Station Jwalapur, Sahranpur against the appellants. Babu Ram and Budh Singh were medically examined by Dr. C.P. Bhatia (PW-6) on 6.7.1982 at PHC Bahadarabad. The medical reports are Ex.Ka-8 and 9. During examination, the doctor found following injuries respectively on the bodies of Babu Ram and Budh Singh-injured:
Babu Ram:
1. An incised wound 2½ cm x ½ cm x 1 cm in size on the scalp, 6 cm above and right to external occipital protuberance.
2. Incised wound 6 cm x 1 cm at the scalp, 10½ cm above external occipital protuberance.
Budh Singh:
1. A traumatic swelling 6 cm x 3 cm in size on the lower part of (L) fore arm, 3 cm above the (L) wrist joint antewrist.
3. During treatment, on 7.7.1982 at about 7.30 a.m. injured-Babu Ram expired on account of injuries sustained in the incident on 6.7.1982. Thereafter, inquest was conducted by the Investigating Officer-Dharmpal (PW-5) which is Ex.Ka-3. After preparing relevant documents/records (Ex.Ka-4 to Ex.Ka-7), the dead body of Babu Ram was sent for post mortem examination, which was conducted by doctor Yashpal Singh (PW-4) who has proved the post mortem report (Ex. Ka-2) and has found following injuries:
1. Stiched wound 5.5. cm long on the scalp 9 cm above the route of right ear. On cutting the stiches the wound was bone deep with clotted blood. Margins of the wounds were lacerated.
2. Stiched wound 2 cm long on the middle of the posterior part of scalp 5 cm below and behind injury no. 1. On opening the stiched wound was found to be bone deep with clotted blood and lacerated margins.
3. Stiched wound 3 cm long immediately below injury no. 2 which was also bone deep with lacerated margins.
4. Abrasion 1 cm x 2 cm on the left index finger.
5. Abrasion 5 cm x 2 cm on the right half of the back below the right shoulder blade.
4. After death of deceased-Babu Ram, the case was converted into Section 302 of IPC through GD No. 33 on 8.7.
